Excerpt: - .....singh pw-2, suram singh pw-3 and sidhu pw-4 was to the effect that the andarli awal and baharli awal land yielded three crops a year and that the kheratan land yielded three grass crops. these witnesses, further, deposed that all the land was level and was well served by a kuhl from rakumani kund, all the year round. the evidence of suram singh pw-3 deserves special consideration. he was office kanungo, in bilaspur, for a long time and had visited the land in dispute, several times in the course of his official duties. the conclusion from the evidence of suram singh and other witnesses is that the andarli awal, baharli awal and kheratar land could be easily converted into kuhli land awl made to yield greater profits. it is clear that the andarli awal, baharli awal and kheratar land.....

Judgment:

Om Parkash, J.C.

1. The dispute, in this appeal, against an order of the learned' Additional District, Judge, Bilaspur, relates to the determination of the market value of land and non-fruit trees, belonging to the respondents, situated in village Kallar, which were acquired in connection with the construction of Bhakhra-Dam-Reservoir. The Collector had assessed compensation with respect to the land and trees. The award of the Collector was not accepted by the respondents. They filed objections against it. The objections were referred, for determination, to the Court.

2. The objections of the respondents, against the award, were that the market value of the land and trees had been assessed low and that the whole of the land acquired was kuhli and its market value should have been assessed as such and that the Collector was in error in classifying the land into kuhli, anderli awal, beharli awal, kheratar, banjer and gair-mumkin and evaluating each class at different rates.

3. The objections of the respondents were contested, on behalf of the appellant. It was pleaded that the land was correctly classified for purposes of evaluation and that the market value of the land and trees was correctly assessed.

4. The learned Additional District Judge, who had heard the reference, made at the instance of the respondents, held that the land, classified and evaluated, as anderli awal, beharli awal and kheratar, by the Collector, was potentially kuhli and its market value should have been assessed as such. He, also, held that the market value of the kuhli land and the trees was assessed' low by the Collector. The learned Additional District Judge enhanced the market value of both the land and the trees and increased' the compensation, payable to the respondents, by a sum of Rs. 5,758.36p.

5. Aggrieved by the order of the learned Additional District Judge, the Collector has come up in appeal. The main grievance of the appellant is that the learned Ad'ditlonal District Judge was in error in enhancing the compensation for the land and the trees and in evaluating andarli awal, baharli awal and kheratar land as potentially kuhlj land.

6. The respondents have filed cross-objections, claiming further enhancement in the market value of the land.

7. The first point, which requires decision in the appeal, is whether the learned Additional District Judge erred in assessing the market value of anderli awal, baharli awal and kheratar land as potentially kuhli land. It is well settled that the market value of the land does not merely mean, the value which the land has on account of the manner in which it js actually being used for the time being, but also its value in relation to further possibilities. Reference may be made Co the observations of their Lordships of the PrivyCouncil, in Atmaram Bhagwant Ghadgay v. Collector of Nagpur, AIR 1929 PC 92, to the effect that:

'An owner of land is entitled to the value to himself of the property jn its actual condition at the time of expropriation with all its then existing advantages and with all its further possibilities excluding only any advantages due to the carrying out of the scheme for the purposes for which the property is being acquired.'

8. Similarly, it was laid down in Mohini Mohan Banerjee v. Secy. of State, AIR 1921 Cal 193, that a Court, in assessing compensation under the Land Acquisition Act, must take into account, not only the present purpose to which the land' is applied, but also any other more beneficial purpose to which in the course of events it might within a reasonable period be applied.

9. In the present case, the unrebutted evidence of Finnu Ram PW-1, Dalip Singh PW-2, Suram Singh PW-3 and Sidhu PW-4 was to the effect that the andarli awal and baharli awal land yielded three crops a year and that the kheratan land yielded three grass crops. These witnesses, further, deposed that all the land was level and was well served by a kuhl from Rakumani Kund, all the year round. The evidence of Suram Singh PW-3 deserves special consideration. He was office kanungo, in Bilaspur, for a long time and had visited the land in dispute, several times in the course of his official duties. The conclusion from the evidence of Suram Singh and other witnesses is that the andarli awal, baharli awal and kheratar land could be easily converted into kuhli land awl made to yield greater profits. It is clear that the andarli awal, baharli awal and kheratar land had the potentiality of being utilized as kuhli land, within a reasonable time. The learned Additional District Judge did not err in evaluating the andarli awal, baharli awal and kheratar land as potentially kuhli land. Of course, the land' potentially kuhli could not be on the same footing as the kuhli land. In the former case, the possibilities were still unrealized, while in the latter case, the possibilities had, already, been realized. The market value of potentially kuhli land will, naturally, be less than that of kuhli land'.

10. The learned Additional District Judge has assessed the market value of kuhli land and potentially kuhli land at the rate of Rs. 450/- and Rs. 350/- per bigha, respectively. Both the parties have taken exception to this market value. The contention, on behalf of the appellant, is that the rate fixed is high. The respondents, on the other hand, contend that the rate is low and that the market value of land should have been assessed at the rate of Rs. 600/- per bigha. In support of their claim for a higher rate, the respondents place reliance, mainly, on the judgment of this Court in Mehta Nand Lal v. Collector, Bilaspur, First Appeal, No. 12 of 1962 (Him Pra). That was a case under the Land Acquisition Act. The market value of land, acquired, in that case, was assessed at Rs. 600/- per bigha, by this Court. The land, in that case, was also acquired for the construction of Bhakhra-Dam-Reservoir. It was acquired, under the same notification, under which the land, in the present case, was acquired. Theland in Mehta Nand Lal's case, was not only contiguous to the land, in the present case, but formed part of the same khata.

11. The learned counsel for the appellant objected to the admissibility of the judgment in Mehta Nand Lal's case. His contention was that the judgment was not inter partes and was not admissible under any of the Sections 40, 41 and 42 of the Evidence Act, relating to the admissibility of judgments. It is true that the judgment in Mehta Nand Lal's case was not inter partes and is not admissible, either under Section 40 or Section 41or Section 42 of the Evidence Act. But judgments, not inter partes, may be admissible under other Sections of the Evidence Act, read with Section 43 of that Act, under certain circumstances and for certain limited purposes. Their Lordships of the Privy Council had admitted Magistrate's orders, not inter partes, passed under Section 145, Cri.P. C., in Dinomoni Chowdhrani, v. Brojo Mohini Chowdhrani, 29, Ind App 24 (PC). Their Lordships observed as follows:

'These police orders are in their Lordships'opinion admissible in evidence on general principles as well as under Section 13 of the Indian Evidence Act to show the fact that such orders were made. This necessarily makes them evidence of the following facts, all of which appear from the orders themselves, namely, who the parties to the dispute were; what the land in dispute was; and who was declared entitled to retain possession. For this purpose,and to this extent, such orders are admissible inevidence for and against every one when the fact of possession at the date of the order has to be ascertained.'

'In recent years the tendency has been to admit judgments which are not inter partes in evidence under certain circumstances and for certain limited purposes, under the provisions of Section 43, Evidence Act, read with Sections 11 and 13 of that Act. Although they do not operate as res judicata they ought to be treated as pieces of evidence to be used for certain limited purposes and to be taken into consideration along with the other evidence, if indeed any other evidence exists.'

13. The judgment, in Mehta Nand Lal's case, will be relevant and admissible, in the present case, under Section 11 of the Evidence Act, for showing that the rate of Rs. 600/- per bigha, allowed in that case, would be a highly probable rate, in the present case, as the lands, in both the cases were contiguous, similarly situated and were acquired under the same notification and for the same purpose.

14. There are cases, in which judgment's and award's, not inter partes, under the Land Acquisition Act, were held admissible for determining the market value of land. Reference may be made toMadan Mohan Burman v. Secy, of State, AIR 1925 Cal 481. The learned Judges referred to the case of Secy. of State v. India General Steam Navigation and Rly. Co. Ltd., 36, Ind App 200 (PC) and observed:

'In that case certain judgments of the High Court in other proceedings were relied upon by the claimant. It was argued on behalf of the appellant to the Judicial Committee that these judgments were not evidence of the value of the land in dispute. Their Lordships, after stating in their judgment that the High Court in a very careful judgment had revised the earlier awards, dismissed the appeal, holding that no question of principle was involved in it. There cannot be a clearer authority that previous decision in Land Acquisition cases are relevant in a subsequent case where the market value of lands in the same neighbourhood is in issue.'

15. Awards, made, by the Collector, under the Land Acquisition Act, were admitted, in evidence, in a subsequent case, not inter partes, in Pribhu Diyal v. Secy. of State, AIR 1931, Lah. 364.

16. The aforesaid Calcutta and Lahore rulings were dissented from, in Special Land Acquisition Officer v. Lakhamsi Ghelabhai, AIR 1960 Bom 78, cited by the learned counsel for the appellant, and it was held that a judgment not inter partes, in a Land Acquisition reference, was not admissible, in evidence, in a subsequent case.

17. For the reasons, already given, I am of the opinion that the judgment in Mehta Nand Lal's case is relevant and admissible in evidence, under! Section 11 of the Evid'ence Act, for determining the market value of the land, in the present case.

18. The respondents had also produced oral as well as documentary evidence. Amongst the document produced, was a mutation, evidencing a transaction of the creation of occupancy rights, in respect of thirteen bighas and seven biswas of land, situated in village Makari for a consideration of Rs. 6,600/-. The village Makari was quite close to village Kallar, in which the land, in the present case, was situated. It is a matter of common knowledge that an out and out sale is more valuable than the conferment of occupancy rights. A sale of land, in village Makari, would have been of more value than the creation of occupancy rights. Ex. R-A and Ex. R-B, the copies of mutations, produced by the appellant, evidencing transactions of sales of land, situated in villages, which were not near village Kallar and the sales in which had taken place much earlier than the promulgation of the notification under Section 4 of the Land Acquisition Act were not safe criteria for determining the market value of land in the present case, and were rightly excluded from consideration by the learned Additional District Judge.

19. On the basis of the judgment of this Court in Mehta Nand Lal's case and the mutation for the creation of occupancy rights in land, situated in village Makari, the market value of the kuhli and the potentially kuhli land, in the present case, can be, reasonably, assessed at the rate of Rs. 600/-and Rs. 500/- per bigha, respectively. Calculated at the above rates, the market value of the landacquired will be enhanced by Rs. 1,550/-, over and above, that awarded by the learned Additional District Judge. The respondents will also be entitled to get another amount of Rs. 232.50 nP. as 15 per cent., on the additional market valueof Rs. 1550/-, in consideration of the compulsory nature of the acquisition.(20) The market value of the non-fruit trees was determined by the learned Additional District Judge on the basis of the report of Shri Bali Ram PW-5, who was appointed as a commissioner to assess the market value of the trees. Shri Bali Ram had put in more than thirty years' service in the Forest Department and had retired as a Deputy Ranger. On account of his long service and experience in the Forest Department, Shri Bali Ram was not unqualified to assess the market value of the non-fruit trees. Shri Bali Ram had visited the spot and had assessed the market value of the trees at the rates, prevalent in the Forest Department. In the circumstances, the market value of the non-fruit trees, as determined by the learned Additional District Judge, is upheld.

21. As a result of the above discussion, the appeal is dismissed and the cross-objections are allowed. The respondents have, in their cross-objections, claimed an additional amount of Rs. 1550/-, only, and have paid court-fee on that amount. The order of the learned Additional District Judge, is, therefore, modified to the extentthat the respondents will be entitled to get an additional amount of Rs. 1550/-, as the market value of the land, over and above what was awarded, by him.

22. In the circumstances of the case, theparties will bear their own costs of the appealand the cross-objections.